Navigating Building Defects in NSW: Major Defects & Home Building Act for Apartment Owners

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As an apartment owner in New South Wales, it is important to understand what your rights are and what course of action to take if and when defects are found in your apartment. This article will firstly describe the difference between a ‘defect’ and a ‘major defect’ under the Home Building Act 1989 (HBA) before helping break down what your rights and obligations are under the HBA when dealing with these defects. We will then explore some of the avenues you can pursue to rectify those defects in Sydney and NSW.

Table of Contents

Defects and Major Defects: Understanding the Difference

According to the Home Building Act, a “Defect” refer to faults, malfunctions, or imperfections that breach or affect the quality, safety, or habitability of a residential building, including apartments. These defects can range from minor issues like cracked tiles or peeling paint to more significant concerns such as structural instability or water penetration. On the other hand, the HBA defines a “Major defect” as defects that pose a significant risk to the health or safety of the occupants or render the apartment uninhabitable. Examples of major defects can include major structural damage, significant plumbing or electrical faults, or severe water ingress. Read our comprehensive guide on major defects under the HBA here. Understanding the distinction between defects and major defects as a home owner is crucial as major defects require immediate attention and may have a significant impact on the habitability and safety of your apartment, requiring more extensive remediation measures. 

Defective Works: Rights and Obligations under the Home Building Act 1989

Understanding the rights and obligations outlined in the HBA is critical for home owners to assert their entitlement to quality construction and prompt resolution of defects. It’s essential for both home owners and builders to be aware of their respective responsibilities to maintain a fair and balanced approach in dealing with apartment defects and ensuring the integrity of the residential building process.

The HBA serves as a comprehensive framework that regulates residential building work and provides important rights and obligations for homeowners in New South Wales (NSW). Covering various aspects of the construction process, including the building contract, statutory warranties, and dispute resolution mechanisms, it aims to ensure that home owners are protected and can address defects in their apartments effectively.

The statutory warranties the HBA provides to home owners are a key aspect of the HBA. These warranties essentially act as guarantees given by the builder to the home owner regarding the quality and workmanship of their building work. The HBA establishes specific timeframes during which these warranties apply with the length of the warranty period dependent on the nature of the defect. For ‘major defects’, the warranty period is six years from completion of the work. For all other defects, the warranty period is two years from completion of the work. Home owners can rely on these warranties to request rectification of defects from the builder within the specified timeframes.

Builders have distinct responsibilities and obligations under the HBA including completing the work with reasonable care and skill using suitable and approved materials. They are also required to ensure that any residential building work they undertake complies with the relevant building codes and standards. During situations when defects are discovered, the HBA sets out procedures for home owners to follow when notifying builders of such defects and when seeking rectification. Concurrently, the HBA mandates all builders to rectify those defects within the given timeframes under the statutory warranties. 

What to do to resolve Apartment Building Defects

Document the Defects and Contact Strata

When encountering defects in your apartment, time is of the essence and it is crucial to promptly take action, either by yourself or with the assistance of a specialist lawyer. You should firstly start by thoroughly documenting all the defects you’ve discovered. This includes taking photos, videos, and detailed notes that accurately capture the nature and extent of the issues – documentation that will serve as valuable evidence throughout the resolution process.

Once you have gathered and collated documentation of all the defects, you should inform the Owners’ Corporation of the defect you identified. They are responsible for the common areas and the overall maintenance of the building and they will likely have a process in place for handling defect reports and coordination with the builder on your behalf. It is essential to clearly and concisely outline the defects you’ve identified, provide supporting documentation and maintain open lines of communication. According to a 2021 report from the NSW Office of the Building Commissioner, In around a quarter of instances, defects are normally resolved with some form of resolution reached with the developer or builder.

Commence Proceedings in a court or tribunal

Pursuing legal action against the builder or developer is normally considered a last resort so a strong understanding of the dispute resolution process is essential. It is highly recommended to engage a lawyer specialising in construction and strata law to help you understand and navigate the available dispute resolution mechanisms. One mechanism include lodging an application with the New South Wales Civil and Administrative Tribunal (NCAT) who has powers to make binding decisions to ensure proper rectification and compensation if warranted. Another mechanism is to pursue the developer under the Home Building Act which allows owners of apartments (and subsequent owners) to hold the developer liable for defects where pursuing the builder is no longer viable (e.g. if the builder was in liquidation). 

How can our lawyers help with your defects

Each case is unique, and seeking legal advice specific to your situation is advisable to understand your rights and navigate the resolution process effectively. By promptly taking proactive steps, understanding dispute resolution avenues and partnering with expert lawyers you can work towards a satisfactory resolution of the building defects affecting your apartment. At PBL Law Group, our friendly lawyers specialise in construction law and strata law so you can effectively navigate the complexities of rectifying your apartment’s defects and seek the remedies you deserve.

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Raea Khan Circle
Director Lawyer
Raea Khan

Raea is Managing Director and Principal Lawyer for PBl Law Group. Raea assists clients with major projects, property developments, construction and strata law.

He has worked in Western Australia and Queensland assisting with expansion projects in the energy and resource sector and now predominately advises clients in Strata and Community Association matters.

He is a member of the Australian College of Strata Lawyers where majority of his work is advising developers and owners corporations with dispute related minor and major defects, strata governance and common property litigation. He is proficient at leading negotiations and meetings.

Raea has a particular interest in the commercial aspect of any dispute and always tries to weigh up the risk, reward and benefit of legal proceedings at each different stage.

Raea enjoys all forms of competitive sport, including Crossfit and actively participates in Triathlons, representing Australia as an age group athlete. He was a member of Red Head Surf Lifesaving club.

  • Strata Law
  • Construction & Major Projects
  • Commercial and Business Law
  • Planning & Environment Law